On Motion for Rehearing
In connection with their motion for rehearing, petitioners have requested and are granted leave to amend their application for writ of error and raise the point mentioned in the concluding paragraph of our original opinion. The question was properly preserved in their brief and motion for rehearing in the Court of Civil Appeals.
This is not an action in which the Court may properly divest a party of an estate in land even though the latter is compensated for its value. The trial court evidently proceeded on the theory that the deed executed by Mrs. Hearne to respondents vests the full title to the property in the grantees, but it is our opinion that the instrument reserves a life estate to the grantor. Since this interest has not been recognized and preserved, the judgments of the courts below must be reversed. A more difficult question is whether to render judgment here or remand the cause for a new trial. There is nothing to suggest that the value of the life estate is included in the $2,800 damages awarded to Mrs. Hearne, but from a consideration of the entire record we believe the justice of the case requires another trial. See Rule 505, Texas Rules of Civil Procedure.
The judgments of the Court of Civil Appeals and the trial court are accordingly reversed, and the cause is remanded to the district court.